E.I. Du Pont De Nemours & Co. v. Forma-Pack, Inc.

“[wjhere by the communication—such voir dire was indicated significant possibility juror juror there is a that a or potential Id. has been exposed prejudicial extra-record information.” 667, quoting Virgin v. Dowling, Government Islands (3rd Cir.1987), 814 F.2d 137-38 U.S. aff'd (1990)). 668, 107 S.Ct. L.Ed.2d. 708 the case sub judice judge The trial found that there was no reasonable likelihood that any jurors had seen the potentially prejudicial upon information contained the elec- board, tronic finding bulletin and that was supported evidence; consequently, he did not abuse his discretion to voir dire refusing jurors to investigate specula- Bruce’s jury tion that the had been such exposure. tainted AFFIRMED, JUDGMENT WITH COSTS.

718 A.2d 1129 E.I. du PONT de NEMOURS & CO. v.

FORMA-PACK, INC. 99, Sept. Term, No. 1997. Appeals

Court of Maryland.

Oct. Hirsch, Charles S. Spahr Ballard Ingersoll, Andrews & on brief, Baltimore, appellant. (Mark McCann,

John E. D. Gately, Jr. Miles Stockbridge, & brief), Baltimore, on for appellee. BELL, C.J.,

Argued ELDRIDGE, before RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

CHASANOW, Judge. doctrine product the work in this case whether issue discovery from protects the privilege and/or corpora- between a creditor documents that were transmitted debt outside collec- legal department tion’s in-house must have such documents agency. protected, tion To be in litigation rendition of anticipation in of produced been County Arundel for Anne legal The Circuit Court services. case, E.I. finding in this rejected both claims of (DuPont) to meet its Pont & Co. failed du de Nemours privilege. to of We any burden of as the existence proof DuPont’s denying of trial court judgment affirm the work and hold that neither protective motion order protects the attorney-client privilege nor the product doctrine Forma-Pack, Inc. discovery by question documents (Forma-Pack), anticipation of they produced as were services, instead were or in rendition of but of debt collection. produced purely purpose for the business

I. BACKGROUND of Court for appeal This from an order the Circuit arises motion order County denying protective Anne Arundel for a timely to the by appeal filed DuPont. DuPont noted a Court of court was Special the order the circuit Appeals, appellate a decision the intermediate court. stayed pending by on our own motion consider- granted prior We certiorari Special Appeals. ation the Court 8-207(a)(2),1 parties Rule Maryland accordance with case and following agreed filed the statement facts: a lawsuit parties pending “DuPont and Forma-Pack are in the and for Superior Court for the State California DuPont, County Joaquin, of San entitled E.I. Inc. v. (filed 1996) Forma-Pack, Inc., No. 292630 March Case 8-207(a)(2) Maryland Rule states: "Statement of case and facts. election, joint parties days filing Within 15 shall file after case, copies agreed including with Clerk four of an statement of facts, 8-413(b)...." prescribed by as Rule the essential (the Action”). “California During the course of discovery Action, the California Forma-Pack deposition had two sub- poenas duces tecum issued the Circuit Court for Anne County Arundel and served them on R.P. Ehrlich and his employer, Kaplan & Kaplan (Kaplan) [ Forma-Pack ]. sought of, to take the depositions and receive documents from, Mr. Ehrlich and Kaplan & Kaplan Anne Arundel County. Kaplan Kaplan & is a agency collection which had by been retained legal department November, DuPont’s 1992 to undertake collection against efforts Forma-Pack to ultimately retain a San attorney, Francisco Stanley Peck, to file the underlying California Action against For- ma-Pack seeking collection of the alleged debt.

In response to Forma-Pack’s subpoenas, DuPont filed a motion protective order to prevent the disclosure of communications and- documents which it pro- believes are by attorney/client tected privilege and the work-product doctrine. Forma-Pack opposed DuPont’s motion maintain- ing that the communications between DuPont’s attorneys and its agents collection protected were not by privi- either lege. parties Both filed supplemental prior memoranda to hearing court, before the trial which occurred on August 7,1997. its

Along memorandum, with motion and DuPont submit- ted the affidavits of two DuPont employees which stated that DuPont’s legal department did not typically receive accounts, delinquent account, such as the Forma-Pack until appropriate after the DuPont business unit had attempted to collect the account.... Upon receipt of the Forma-Pack account, DuPont’s legal department retained & Kaplan Kap- lan to assist in and, the collection of the account if neces- sary, retain counsel to file suit. The affidavits submitted further stated that once the legal department received the account, Forma-Pack presumed DuPont (which- was) might necessary in fact it and that all communications with Kaplan & Kaplan were intended to be privileged. The privilege log submitted by DuPont de- pertinent documents, scribes the including two internal documents, reflecting as communications Kaplan Kaplan & in this attorneys involved Kaplan between & and/or the California Action. litigation or result, collection of argued As a DuPont account, to DuPont’s once it was referred Forma-Pack function, that communi- purely legal was .a department, of Kaplan the engagement course of &. cations made efforts protected w[ere] aid its collection Kaplan to that the doc- argued DuPont also attorney/client privilege. department its legal communications between uments and work-product were Kaplan Kaplan & in anticipa- were made the communications doctrine because the court conduct DuPont also invited litigation. tion on the the documents listed inspection in camera log. Forma- position. DuPont’s disagreed Forma-Pack with disput- attempted collection Pack maintained that business, Action was underlying debt in the California ed Du- out that pointed Forma-Pack activity. not a legal, the disputed pre-dated collect the debt attempts Pont’s to Forma- years. of action several filing underlying the of of testimony one prior deposition also the Pack submitted affiants, Herr, that, F. who stated “[I]t DuPont’s own Susan of DuPont approach a on behalf may have been business that Forma-Pack maintained the collection the debt.” was approach to the collection debt this business an underlying litigation issue in the and area directly at discovery. is to to which Forma-Pack entitled inquiry and By Opinion August Order dated Memorandum protective for court denied DuPont’s motion trial ruling adopted argument^] order. The court Forma-Pack’s attorney/client privilege apply did not because that not legal is a function and a collection of debt business doc- work-product court also ruled that the function. The work per- it apply trine did not because believed that not Kaplan for DuPont was done with by Kaplan formed & that belief that there was some possibility omitted). (Footnotes result.” and internal citations might issues before this Court are set forth the trial judge’s opinion: action, Dupont

“In this bringing arguments makes two support First, of its Motion for Dupont a Protective Order. argues Kaplan that is agent Dupont’s depart- legal ment any and that communication between the two not attorney-client discoverable under the privilege. addi- tion, argues Dupont that communications Dupont between Kaplan in their to efforts collect a debt from Forma- Pack are not discoverable under the work-product doctrine. The Court finds arguments unpersuasive these and will deny Motion Plaintiffs for reasons stated below.” dispute DuPont does not that its arguments correctly were framed by judge. the trial Forma-Pack that maintains circuit court correct in finding hiring was of a by a agency corporation collection creditor constitutes busi- approach, ness not a to approach, debt collection and that is not Kaplan agent DuPont’s purposes litigation. As such, argues Forma-Pack that the communications between DuPont and are not Kaplan discovery shielded under the work product either doctrine or the privi- lege. We upon are called to decide whether the trial judge clearly was in finding, evidentiary erroneous after a full hear- ing, DuPont failed to meet its proof burden as existence of either thus was entitled protective order based on privilege. While there is no doubt might that some of documents Kaplan’s attorney- violate privilege, particular client pertaining the items to communi- cations its attorney, between own the communica- Kaplan tions between and DuPont are not privileged for the infra, only reasons stated and it is DuPont and that is claiming privileges. these important Also to our is holding that a non-lawyer hired company to handle DuPont matter, the debt collection rather than an attorney or law firm, which us to leads conclude that legal advice and assis- were not tance DuPont’s intent retaining Kaplan.

405

II. ANALYSIS on a premised Maryland discovery rules are The current Balto. Transit See encouraging liberal disclosure. philosophy (1961). 768, 8, 13, 174 A.2d 771 v. Mezzanotti 227 Md. Indeed, designed discovery deliberately rules are the State’s liberally construed. broad, scope and comprehensive to be Adm., 223, 411 A.2d Kelch v. Mass Transit In 287 Md. Id. (1980), this Court stated: 449 discovery objectives

“[A]mong providing the basic all of his by litigant to party ‘to disclosure facts require eliminate, adversaries, possible, to as far as thereby to trial in a litigation going necessity any party to mind, concerning facts muddled state of confused Weiss, 36, Klein litigation.’ 284 Md. to give rise (1978). 126, Further, 55, order to accom 395 A.2d 137 ‘[i]n discovery rules are to be plish purposes, the above * * * Transit Co. v. Mezza Baltimore construed.’ liberally (1961)....” 8, 13-14, 768, 771 227 174 A.2d Md. notti also Rubin v. 229-30, 411 453. See at at A.2d 287 Md. (1984) Weissman, 392, 1235, 401, 1239 475 A.2d Md.App. liberally to con- (noting discovery rules are that “the Transit, strued”) 13, Balto. Md. 174 A.2d at (quoting Lednum, 520, Barnes v. 771); 406, 79 A.2d 197 Md. “[mjodern (1951) or rules are (stating discovery statutes facilitate discovery”). intended to allowing pretrial served purposes

The main to be “(i) acquire of documents are to accurate useful discovery likely which is to be respect testimony with information (ii) to information which opponent, obtain presented to the reasonably discovery calculated lead appears (iii) evidence, an aid in cross- to use as admissible Kelch, 287 Md. at witnesses.” examining opponeht’s 411 A.2d at 454. rules, administering discovery judges trial

“ reasonable, in applying sound discretion ‘are vested with them, the absence of will not be disturbed which discretion ” Kelch, Md. at 411 A.2d at abuse.’ showing its 406 Transit, 13-14, Balto.

453 227 at 174 771 (quoting Md. A.2d at (footnote omitted)). Moreover, who party resisting is discovery asserting and is a protective privilege bears See burden of its existence and establishing applicability. Dev., Maxima v. 6933 441, 456, Arlington 100 641 Md.App. In re No. 977, (1994); A.2d Investigation Criminal 984 1/242Q, 1220, 1225 (1992). 1,11, Md. 326 602 A.2d mind, they

With these to principles particularly pertain as Maryland (1974, Rule 2-402 and 1995 RepLVol.), Md. Code Article, 9-108, infra, and Proceedings Courts Judicial we now to analysis product turn our of the work doctrine and attorney-client as privilege they pertain to the case before us. product As we examine the work doctrine and attorney- it privilege, helpful client is the following note distinctions between the two.

First, they while con appear embrace the same cepts of client confidentiality advocacy, zealous the work product attorney- doctrine is and distinct from separate State, Pratt 442, 2, v. client privilege. Md.App. 39 446 n. 387 (1978). 779, n. 2 attorney-client A.2d 782 The privilege as in judicial proceedings construed, is applied narrowly whereas work product in scope. Leonen v. doctrine is broader Johns-Manville, (D.N.J.1990). 94, Indeed, 135 F.R.D. 96 it is though even often referred to as a work privilege, all, is product “merely doctrine is but requirement very shown if good cause be the disclosure is City lawyer’s made the course of a preparation case.” Westinghouse Philadelphia Corp., Elec. 483, 210 F.Supp. (E.D.Pa.1962). Second, 485 the work product doctrine is “historically traditionally a privilege of the attorney Burners, not that of the client.” Radiant Inc. v. American Association, (N.D.Ill.1962). Gas 771, F.Supp. 207 776 contrast, it client who is the holder of privilege. Trupp v. Wolff, Md.App. 335 A.2d Lynn Maryland (1975). See also McLain, Evidence (1987)(footnotes 503.1, omitted). § at 481-82 Doctrine A. Product Work discovery product protects doctrine The work or in anticipation done of an work 2-402(c). United for trial. See Md. Rule readiness Hick in the case of decision seminal Supreme Court’s States (1947), 385, 495, 91 L.Ed. 451 Taylor, 67 S.Ct. man 329 U.S. and in both the state doctrine guided product has the work work doc product confronted with the federal courts. When litigation trine, the need for efficient must balance courts attorney’s responsibility against the through liberal disclosure or client. advocate for his her protective zealous and to com acknowledged of these The Hickman Court the tension discovery provisions it stated that “the interests when peting ...,” liberally possible and as broadly to be as applied are 460, Hickman, 391, at 506, at 91 L.Ed. at 67 S.Ct. 329 U.S. ultimate and neces “discovery ... has noting also while 507, 392, at 67 at 91 L.Ed. U.S. at S.Ct. sary boundaries.” 329 being work doctrine product With the touchstone trial, for preparation have the materials must been created Hickman Court types also two different discussed Regarding fact work opinion. work fact product, stated: product, Court cry ‘fishing longer expedition’

“No can the time-honored into the facts party inquiring from preclude serve to knowledge all his case. Mutual underlying opponent’s is essential to parties both gathered the relevant facts end, may compel the party To that either litigation. proper possession.” he has his whatever facts disgorge other to (Footnote omitted).

Hickman, 392, 507, L.Ed. at 460. at at 91 329 U.S. S.Ct. work “opinion” has come to be called discussing what does product that the work doctrine the Court stated product, memoranda, briefs, communications and other “concern prosecuting his by counsel for own use writings prepared case; writings and it is unrelated equally his client’s which attorney’s conclusions, reflect an impressions, mental opinions or legal theories.”

Hickman, U.S. 67 S.Ct. at 91 L.Ed. at 461.

Subsequent courts have refined the distinction between opinion fact and product, work with both being generally only in limited discoverable See circumstances. (4th In re Grand Jury Proceedings, 33 F.3d Cir. 1994). Fact work product only can be discovered when “sub shown, stantial need” and “undue áre hardship” but opinion product always work is almost completely protected 2-402(c). disclosure. Id. also See Md. Rule The work product doctrine of Hickman is codified in 2-402(c): Md. Rule Preparation—Materials.

“Trial Subject the provisions (d) (e) Rule, of sections of this a party may obtain discovery documents or other tangible things prepared anticipation trial or for another party or by or for that other party’s representative (including an consultant, indemnitor, insurer, attorney, surety, agent) or only a upon showing that the materials are discoverable (a) of under section this Rule and that the party seeking discovery has substantial need materials in for preparation the case is unable undue without hard- of ship to obtain the equivalent substantial by the materials of other ordering means. In discovery of these materials when the required made, has showing been the court shall protect against disclosure of the impressions, mental conclu- sions, opinions, or theories of an attorney or other (Em- representative party of concerning the litigation.” added). phasis 2-402(e)

Maryland Rule is almost identical to Federal of Rule 26(b)(3).2 Civil Procedure See Shenk v. Berger, 86 Md.App. Preparation: "Trial Subject provisions Materials. to the of subdivi- rule, (b)(4) may sion party of this discovery obtain of documents and tangible things (b)(1) otherwise discoverable under this subdivision of prepared rule anticipation litigation by of or for trial or for

409 498, 502, 551, looks corre (1991)(“Maryland 553 587 A.2d Mary construing similar guidance rule for sponding federal Tennant, State, 243 Md. Use land Snowhite v. rule”)(citing (1966)). 291, 308, 342, with Hickman and As A.2d 26(b)(3), the standard of Civil Procedure Federal Rule 2-402(c) to shield his if a can use Md. Rule determining party is whether the materials discovery documents from or her Determining anticipation litigation.” “in were prepared ‘prepared was tangible thing document or other “whether a essentially for trial’ ... anticipation by fact, which, if in is to be determined dispute, question Kelch, hearing.” evidentiary judge following the trial Rubin, Md.App. 411 A.2d at 453. See also Md. at addition, party claiming In 475 A.2d at 1240. “ non-discovery its ‘to substantiate bears the burden Kelch, of the evidence....’” assertion a preponderance 422). If the (quoting 411 A.2d at 453 Rule 287 Md. at claim, party seeking in its then the party is successful moving communications demon discovery gain can access to the See Md. hardship.” need” and “undue strating “substantial 2-402(c). Rule materials were particular whether determining examine whether litigation, courts anticipation

prepared ordinary in the course of business. were created they or not Co., 10, 18 & 91 F.R.D. APL Aetna Cas. Sur. Corp. (D.Md.1980). notes to the 1970 Advisory Committee “materials as to the Federal Rules noted that Amendments for nonlitigation of business or ordinary in the course sembled immunity granted by partial [Rule are not under the purposes party’s representative (including party by or or for that other another insurer, consultant, indemnitor, surety, attorney, or party’s the other seeking discovery party agent) only upon showing that has party’s preparation in case need of the materials substantial hardship party undue to obtain the that is unable without and ordering In equivalent the materials other means. substantial of made, showing required been discovery has of such materials when impressions, against of the mental protect the court shall disclosure conclusions, repre- opinions, of or other theories or ” litigation.... party concerning the sentative of a 410 subsection(b)(3).” Burlington v. Industries Corpo Exxon

26] ration, (D.Md.1974). 26, 65 42 F.R.D. In looking at whether the materials at prepared anticipation issue were of litiga the court APL stated: tion,

“ ‘Courts and commentators have offered a variety formu- las for necessary nexus between the creation of the See, material and the e.g., Home prospect litigation. Insurance Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D.Ga.1977) (must be a “substantial probability litiga- tion will occur such litigation commencement of imminent”); Jury Investigation re Grand (Sturgis), [412 943, (E.D.Pa.1976) (threat F.Supp. 948 litigation must ] Products, imminent”); “real and Stix Inc. v. United Mer- Inc., chants & Manufacturers, (S.D.N.Y. 334, 47 F.R.D. 337 1969) (prospect “identifiable”); must be 4 ¶ (1970) Moore’s 26.63(2.-1), Federal Practice at 26-349 (litigation must “reasonably have been or anticipated appre- ” hended”).’ 91 F.R.D. at 15 (quoting In re Jury Grand Investigation, 599 (3rd 1224, 1229 Cir.1979)). F.2d jurisdictions Other have ruled that the communication must have been prepared “‘principally exclusively to assist ” anticipated or ongoing litigation.’ Sackman Liggett v. Inc., Group, 357, (E.D.N.Y.1996) 920 F.Supp. 366 (quoting Arizona, Martin v. Valley Nat. Bank 291, 140 F.R.D. (S.D.N.Y.1991) Research, v. U.S. Construction Products Inc., (2d Cir.1996)). 73 F.3d See also Winter Panel Chemicals, Inc., Corp. Reichhold 124 F.R.D. (D.Mass.1989) (noting there must be substantial probability of litigation, a mere possibility is not enough); Diversified Industries, Meredith, Inc. v. Cir.1977) (8th 572 F.2d (stating the product “work rule does not ... come into play merely because there is a prospect remote litigation” of future (citation omitted)).

According Wright Miller, the test of whether docu- ments were prepared anticipation of litigation is stated as follows: begin preparation anticipate litigation, parties

“Prudent Thus the test commenced. formally time suit is prior whether, nature of the document in light should case, the docu- in the particular the factual situation or obtained prepared can be said to have been fairly ment of But converse litigation. of prospect because of the already prospect, in litigation is though that even this is prepared documents immunity work-product there is no for purposes rather than regular in the course business of added). omitted) (footnotes (emphasis litigation.” of L. Weight, Marcus, R. Miller & Richard A. Arthur 8 Charles (1994). § at 343-46 Federal Practice and Procedure court, all the essence of to the Leonen According a to have jurisdictions’ that for document various tests is these there must have litigation, in of anticipation prepared been impending litigation. claim or particular, identifiable been fact that mere “[T]he 135 F.R.D. at 97. The court stated: by itself eventually bring does not litigation does occur[] doctrine.” work-product within the ambit documents Raymond Corp. v. in Kramer Accordingly, Id. the court in finds itself circum party “The mere fact that a declared: however, not render does may litigation, lead stances to those circumstances prepared regard documents with all 90-5026, 1992 WL product.” work Civ. No. added). (E.D.Pa. *3 May 29, 1992)(emphasis at Davis, (C.D.Cal.1995), the In 161 F.R.D. 687 Griffith prepared to have been question found the document court 161 F.R.D. at 699. The ordinary course business. prepared of a memorandum discovery request case involved administrative inves- conducting who was an agent IRS shooting finding 161 F.R.D. at 690. tigation accident. discoverable, the court properly memorandum was not materials product protect “The work doctrine does stated: Rather, ordinary course business. assembled motivating behind the creation the mate- purpose primary litigation.” Griffith, in ... future rials must be as an aid added). The court (emphasis original F.R.D. further found that the memorandum “[b]eeause would have generated been whether not was pending, it does product.” Griffith, as qualify work 161 F.R.D. at Young United States v. Similarly, court in the that held to prepare documents used a taxpayer’s tax returns were “not [by covered product the work they because were not doctrine] in prepared anticipation litigation of but rather ordinary in the course of pursuant public business to requirements unrelated to litigation.” 6-70198, Civil Action No. *2 WL (E.D.Mich., 5, 1976). May S.D. supra,

As stated in the instant case the is burden DuPont, on moving as the to party, establish that the docu protected ments are from disclosure under the product work burden, doctrine. Once DuPont meets this the burden then shifts to Forma-Pack to demonstrate “substantial need” and However, hardship.” “undue there was no for this need step, second Judge Loney since properly found that DuPont failed to meet its of showing burden that in the documents question were prepared litigation of anticipation rather than ordinary course of business. His decision was reached after full evidentiary a hearing, the fact findings upon which was clearly it based erroneous. See Md. Rule were 8-131(c).3 In decision, his written the trial well-reasoned judge wrote: present case,

“In the argues DuPont that the documents by Kaplan created by and subpoenaed Forma-Pack are protected by the work-product doctrine because once a account, delinquent account, like the Forma-Pack is trans- ferred DuPont’s legal department, it is presumed that The Court litigation may argument this necessary. finds collection, unpersuasive debt because type which of jury. tried "Action without a When an action has been a tried without jury, appellate court will review the case on both the law judgment evidence. It will not set aside the of the trial court on erroneous, clearly evidence unless give regard and will due to the opportunity judge credibility the trial court of the witnesses.” in, and not a is a practice business engaged was that the debt does not Court practice. find on by Kaplan conducted procedure collection behalf of been done in the be said to have DuPont can belief may be the result. possibility there was some such, discovery Forma-Pack finds that the As the Court work-product doctrine is not under the seeks rather to debt collection approach a because it is business anticipation litigation.” used legal approach than added). (Emphasis approach to debt conclusion that business

Judge Loney’s rather hiring Kaplan, DuPont in the collection was used deposition legal approach, strongly supported than legal department Herr, in DuPont’s employee F. Susan Forma-Pack account for the collection responsible disputed communica- which most during period following: included the deposition Her generated. tions were to of up in March did “[Question:] So we’re mid-1994 DuPont? the account collection for you handle Yes. [Answer:] you Did authorize DuPont to commence

[Question:] Okay. against Forma-Pack? litigation business, may it have In consultation with the

[Answer:] in the a on DuPont approach been business behalf of added). (Emphasis collection the debt.” of Thus, deposition Herr’s that DuPont’s it clear from Ms. is collection mat- viewed the Forma-Pack legal department own legal than a taken approach, approach a rather ter as business such, any of anticipation litigation. generat- in As documents DuPont be materials created in Kaplan and would ed between anticipation not in course of business and ordinary litigation. Judge Loney it is reasonable for to foregoing,

From the DuPont a finding the factual that when hired collection make not to law instead of an practice that was authorized agency a not to purpose was to collect debt and attorney, primary case, This is true this where litigate especially matter. the communications Kaplan began DuPont and between three years to the to prior initiation collect debt. The role of generally a collection is agency provide to debt, business alternative for the collection of a to not serve as agent for or purposes litigation, such as a paralegal private investigator. Consequently, any communications be- DuPont, tween the corporation, creditor and the collection agency, Kaplan, properly were to determined made anticipation litigation, concrete imminent but rather express purpose made for the of avoiding litigation altogether. Moreover, Judge Loney could also conclude that DuPont’s legal department intending was not to represent the corpora- tion in any litigation may if Kaplan arise was unsuccessful reflects, its debt collection efforts. As the record all the legal department did was forward the matter Kaplan. DuPont did not even want to be involved in the decision as to what law firm should represent corporation litiga- should necessary. tion ever become there no

Consequently, basis rejecting factual findings perform function, was hired to Kaplan business function, not a and that the communications between DuPont and not in anticipation were of litigation or for trial. There nothing clearly erroneous decision was trier fact that DuPont simply failed its meet burden of proving, by evidence, preponderance that the work product doctrine shielded the in question documents discovery by Forma-Pack.

B. Attorney-Client Privilege 1. The Privilege in General

The Supreme recognized attorney- Court has client privilege privileges as “the oldest of the for confidential v. communications known to the common law.” Upjohn Co. States, United 389, 383, 677, 449 682, U.S. 101 S.Ct. 66 (1981). 584, L.Ed.2d 591 In Maryland, privilege the has been recognized as rule prevents of evidence that the of disclosure a confidential communication by made a client to his attorney for v. purpose obtaining the Levitsky Prince legal advice.

415 (1982). 600, Co., 484, 491, 604 439 A.2d George’s 50 Md.App. Wig- State, essentially adopted Professor v. we Harrison attorney-client privilege: of the more’s definition “ (2) from a ‘(1) sought kind is [any] legal advice Where (3) such, the as capacity his professional legal adviser (4) in confi- communications made relating purpose, to that (6) (5) permanently client, are his insistence by at dence the (7) or himself disclosure ” (8) waived.’ adviser, [may] except protection (1975) 830, H. 122, 135, 8 John (quoting 345 A.2d 838 276 Md. 2292, (McNaughton § at 554 Wigmore Wigmore, on Evidence omitted)). ed.l961)(footnote rev. Md. is attorney-client privilege

The codified Proceedings (1974, Courts and Judicial Repl.Vol.), 1995 Code Art., 9-108, not be com person may § “[a] and states attorney-client privilege.” in violation pelled testify bears the privilege seeking protection The party Maxima, Md.App. 100 at establishing its existence. burden of 984; 456, Investigation In re No. A.2d at Criminal 641 11, attorney- 1225. 1/242Q, at 602 A.2d at Once 326 Md. invoked, matter the trial court decides as a client is privilege exists, relationship requisite privilege whether the law does, privi communication is any if it such “whether Harrison, 136, at Because 276 Md. at 345 A.2d leged.” withholds rele attorney-client privilege of the application finder, contains privilege vant from the fact information narrowly construed. Mor some limitations and should be Cf. (1968). State, 252, 254-55, 242 Md.App. v. 4 A.2d 561 ris 1/242Q, No. Investigation re 326 Md. at See also In Criminal absolute); is not (noting privilege A.2d at 1225 that the 602 (4th Proceedings, 727 F.2d Jury In re Grand Cir.1984) strictly must be con (noting privilege (strict 494, at strued); A.2d Levitsky, Md.App. favored). construction of Cor Burlington court in Industries Exxon requirement applicability set out the dual poration “Only attorney- it when stated: those attorney-client privilege 416 pertaining to assistance and made

client communications confidentiality with the intention are within the ambit of (citation privilege.” the 65 F.R.D. at 37 omitted)(emphasis added). In discussing “legal the attor prong the advice” State, ney-client 602, the Md. privilege, court 109 Lanasa v. (1909), 71 A. 1058 the “[T]o stated: make communications privileged, they ... must relate to professional advice to subject-matter sought.” about which such advice is 109 617, added). See also Henson (emphasis Md. at 71 at 1064 A. Laboratories, By Wyeth v. Through Mawyer 118 F.R.D. (W.D.Va.1987) 584, 587 Membership N.C. Elec. Corp. (quoting Power, (M.D.N.C. v. Carolina 511, 110 F.R.D. 514 1986))(“[F]or to apply, the client’s confidential primary purpose communication ‘must be for the of soliciting ”); Morris, 4 Md.App. at business, rather legal, than advice.’ States, 255, Colton v. 242 A.2d at 561 United 306 (quoting F.2d 633, 637, 951, cert. den. 371 U.S. 83 9 S.Ct. L.Ed.2d 499 (1963))(“[T]he privilege essentially extends only to the sub stance communicated to an attorney professional matters confidence.”).

Regarding the “confidentiality” prong attorney- confidential, client privilege for communication to be it is that not be essential it intended for disclosure third per to (Under Seal), United v. (4th States sons. 748 F.2d 874 Cir.1984). (Under Seal) The United States held court that attorney-client privilege did not to a apply whole series of corporate documents “because the communications revealed not reasonably could have been to expected remain confiden tial.” F.2d at 877. examining question, items in the court stated that several of the documents contained information “would reasonably expected that be impart to, (Under Seal), United States v. ed third party.” 748 F.2d declared, at 877-78. court “if a client communicates information to attorney his with the understanding others, information will be revealed information ... (Under Seal), United States v. enjoy privilege.” will not also Trupp, Md.App. See 748 F.2d at 875. at 335 A.2d at (holding that for the privilege to apply, and not must be confidential of communication subject person). of a third presence made in the between communications Along looking with whether to a conveyed to be client intended were have also confidentiality, courts thus destroying third party, the communica- attorney at the time looked at the role of the are they confidential tions made to determine whether were (Under Seal) “that v. court noted the not. The United States not raise does alone a attorney-client privilege existence must to the look confidentiality.... [W]e presumption pro- to employed has attorney which the been services ” omitted). (citations 875 vide .... 748 F.2d at has addressed whether specifically While this Court not some activity, cases have legal collection efforts constitute through of a debt attempted recovery that the indicated attorney, if he is an is a business agent, collection even or she Shapiro The In re legal function and not a function. court acts as a business advisor or attorney “Where the stated: between him and his agent ... the communications collection 21, 381 22 by F.Supp. not the privilege.” client are (N.D.Ill.1974) added) (footnote omitted). While in (emphasis (DuPont’s case, legal depart the not instant it is the ment) agent, but acting who is as collection instead Shapiro whom corporation purpose, hired this is many out pointing illustrative courts have held that debt not fall collection activities do within ambit also re attorney-client privilege. See In Witness before (E.D.Wis.1985) 32, F.Supp. 631 33 Jury, Young, Grand 6-70198, 1032, *1 Action No. WL at (quoting Civil 1976 same 22). Similarly, 381 language Shapiro, F.Supp. Kelly at Simon, (S.D.Cal.1962), 9 involved an attor A.F.T.R.2d 888 ney produce with certain documents of served summonses clients, being investigated his who were Internal Reve finding 9 nue Service. A.F.T.R.2d at 889. the documents privileged, the court stated that extent “[t]o respondent acting manager was as a business or rent collec attorney, ... than no agent tion rather as attaches.” added). (emphasis 9 A.F.T.R.2d 890 Privilege Corporate 2. in the Setting Supreme As as early Court assumed that attorney-client privilege when the client is a applied corpora- R., tion. United States v. Louis. & Nash. R. 236 U.S. (1915) (defendant S.Ct. 59 L.Ed. 598 railroad company refused of various documents created inspection by special Commission, agents of Interstate claiming Commerce docu- also See privileged). ments Court Supreme were Standard 503(a), relating attorney-client to the privilege, as cited in Industries, (“A ‘client’ is a F.2d at person Diversified ... who is rendered ... or corporation professional lawyer, services or who consults a with a lawyer view to obtaining legal services from him.” professional (Emphasis added)). of Upjohn, supra, In the landmark case the Court any remaining laid to rest doubts that a corporation entitled exists, claim privilege. Confusion still however, exactly regarding scope employees which 'a counsel, corporation may communicate with corporate either out-of-house, in-house or and still retain protection under the attorney-client the privilege. years, Over several theories have emerged.

The first to develop specific addressing case test the scope in was United States v. protection corporate setting the (D.Mass. United Machinery Corporation, Shoe 89 357 F.Supp. 1950). held essentially The court that a confidential statement any employee corporation counsel officer or might the Shoe, United well privileged. be 89 at 358-59. F.Supp. This theory privilege corporate broad in the environment was Radiant Burners in which the court held: severely in curtailed “[Tjhis personal of the client ... privilege must be claimed only by natural individuals not by corporate mere enti- added). The Radiant F.Supp. ties.” 207 at 773 (emphasis Burners court essentially attorney-client the privi- eliminated Electric, Westinghouse lege in supra, corporations. Later the group “control test” was created. 210 at F.Supp. 483. test, attorney-client Under this the privilege only protects from communications directed to or in employees the control is group, comprised which of those who substantial play role at Westinghouse, F.Supp. decision-making. corporate in rejected group in the control Supreme Upjohn Court The “it will test, scope frequently narrow in finding it too will possess ... who group the control employees beyond lawyers.” corporation’s needed the the information 391, 683, 592. The Court at 66 L.Ed.2d at at 101 S.Ct. U.S. very “frustrates the group the control test further stated that by discouraging the communication purpose privilege attorneys of the client by employees information relevant corporation.” to the client to render advice seeking 684, at 66 L.Ed.2d at 593. 101 S.Ct. Upjohn, U.S. defining deliberately refrained Although the Court corporate setting, scope test. subject-matter factors found analysis its reflects Busi- Weiss, Wearing L. In-house Beware: Amy Counsel Legal 11 Geo. Losing Privilege, ness Hat Could Mean J. (1998). 396-97 Ethics subject-matter Harper forth in Row test is set &

Publishers, Inc. v. Decker as follows: though of a not a of its employee corporation, member

“[A]n corporation sufficiently control is identified with the group, is corporation’s attorney so that his communication to the where the makes the communication at privileged employee his in the superiors corporation the direction of and where subject upon attorney’s matter which advice sought by corporation and dealt with the communica- his performance by employee tion is the of the duties of employment.” (7th Cir.1970).

423 F.2d 491-92 recently Florida Court established new test Supreme attorney-client scope privilege to determine the of the as it v. See Southern Bell Tel. & Tel. Co. applies corporations. (Fla.1994). Deason, 632 acknowledged So.2d That court its corporation only through agents, can act that because a a natural and because a relies much person, corporation unlike on its for business advice than an heavily more counsel individual, “it is likely the ‘zone of silence’ will be en- larged by virtue of the corporation’s continual contact with its Deason, (citation omitted). legal counsel.” 632 So.2d at 1383 Concerned that a corporation could “conduct ordinary its through business lawyers to hide its affairs from light day,” States, Tri-State Equip, United 96-2198, 77 A.F.T.R.2d (E.D.Cal.1996), 1996 WL 376340 the Deason court attempted to strike a balance between the competing interests of encour- aging corporations to seek legal advice so can they best comply with the laws against the real concern companies Deason, using their prevent counsel to discovery. 632 So.2d at 1383. See also Kelly, 9 A.F.T.R.2d at 890 (“If documents privileged client, are not in the hands of a the fact that they are turned over to does not privilege.”). create a

The Deason court combined the tests established in Harper & Row Industries4 and arrived at the follow Diversified ing criteria as to whether a corporation’s communications are protected by privilege:

“(1) [T]he communication would not have been made but for (2) services; the contemplation legal the employee mak- ing the communication did so at the direction of his or her (3) corporate superior; superior made the request of the employee part as of the corporation’s effort to secure legal (4) services; advice or the content of the communication relates to legal rendered, services being subject matter of the communication is within the scope of the (5) duties; employee’s [and] the communication is not dis- "[Tjhe attorney-client applicable employee’s to an commu- (1) nication if purpose communication was made for the securing advice; (2) legal employee making the communication did so at the (3) corporate superior; direction of his superior request made the advice; corporation (4) so that the could secure subject matter of the communication duties; scope employee’s is within the corporate (5) beyond communication is not disseminated those who, persons structure, corporate because of the need to know its note, moreover, contents. We corporation has the burden of showing that the communication in require- issue meets all of the above Industries, Meredith, (8th ments.” Inc. v. 572 F.2d Diversified Cir.1977). who, corpo- of the because beyond persons seminated those structure, contents.” need to know its rate Deason, at 1383. 632 So.2d for a client

Thus, corporation can be it is clear that unclear is what is attorney-client privilege; of the purposes corpora- the regarding this extends protection how far exactly adopt we to While decline employees agents. tion’s application privilege criteria particular set of for the so, the required to do the context until we are corporate under are the instant case not communications any of the tests.

3. as to This Case Privilege Applied The as a analysis is step

The first in our to determine relationship pres is attorney-client threshold issue whether an A is key ent in this case. element of this determination legal being sought by advice was the client. whether once an is determined step, attorney-client relationship second exist, to the communications between is examine whether the For the reasons attorney and client were confidential. step there is no for us to reach this second infra, stated need case, as find no relation the instant we that ship existed. we in mind clarifying parties, keep the roles of the must it

that is in-house attorney department, DuPont’s client, is of its DuPont invoking on behalf is that corporation. Kaplan non-lawyer agency collection legal department the DuPont hired collect the Forma-Pack debt, is for alleging Kaplan agent and DuPont is its (and is purposes subagent). that Peck is Peck DuPont, hired to Kaplan, eventually litigate Kaplan’s proved the debt collection matter after efforts final, A that Kaplan, party critical fact is unsuccessful.5 law, Kaplan practice possibility of is not authorized to there is no As legal department claiming that it is is DuPont’s the client and purposes establishing attorney, subagent, via Peck as its attorney-client privilege. Forma-Pack, from whom discovery being sought by is not asserting the attorney-client privilege; only DuPont is assert- ing privilege. affirm judge’s

We the trial decision that the communications Kaplan between DuPont and are not from discovery attorney-client under the as privilege, attorney-client no rela- DuPont, tionship client, existed. corporate When the consult- attorney, ed with its legal department, doing the it was not so legal Instead, for advice the regarding Forma-Pack debt. the corporation client was simply routing the debt collection mat- ter to its legal department, which turn was to transmit it to outside, non-lawyer collection agency. According to Pro- Lynn fessor McLain:

“Communications regard [with in-house with td counsel] business advice are unprotected. When the is with privilege regard invoked to communications with in- counsel, house will the courts look particularly closely at advice, whether counsel was providing business rather than legal advice or services.” Lynn Maryland 503.9, § at 493 McLain, Evidence

(1987)(footnote omitted).

Thus, when DuPont Kaplan hired it was not for pur- the action; poses instituting instead, legal DuPont was consult- in a ing capacity, with business for typical business purpose collecting a debt. Kaplan may While certainly have been DuPont’s for agent purpose the business of collect- debt, was not hired as an agent ing the agency collection purposes for Nor litigation. can role Kaplan’s be analo- gized expert that of an hired to litigation. assist with law clearly case delineates several attorney, roles also applicable attorney’s agent, to the generally that are not consistent with rendering of professional legal advice. attorney, When the or his or agent, primarily her is acting as agent a collection or business advisor manager, or there is no attorney-client relationship because no is being advice sought given. Consequently, there can be no confidential privileged communications between parties the at- when agent non-legal or his or in one these tomey acting her Thus, serving debt Kaplan was as a capacities. because attorney- there is no agent, non-legal capacity, in a collection to effectively can make client claim DuPont discovery by Forma-Pack. shield the communications an indi- privileged merely are not because “[C]ommunications if client should have vidual law-related services provides person practice known the was not authorized to law.” Christopher Kirkpatrick, B. C. & Laird Federal Mueller (2d ed.l994)(footnote omitted). § at 311 Evidence issue, has focusing specific In on documents at DuPont appeal not in the trial nor its brief on contended that court being has reason any special individual document some beyond arguments judge. addressed trial privileged argument lumping together DuPont chose make one all of documents, no out as indi- singled having with document to the being privileged vidualized reasons for common essence, was argument class. DuPont’s that all of entire Kaplan enjoyed documents it and a exchanged between addition, In only Kaplan’s it is and not privilege. .DuPont’s asserted, that is and docu- attorney-client privilege being conveyed DuPont are Kaplán protect- ments between and not DuPont’s by attorney-client privilege attorney- ed because no DuPont, and relationship legal department, client as to found Kaplan judge existed. The trial that DuPont properly prima failed to meet its burden of case that proving facie stated, were when he “there privileged these communications Dupont’s legal was no between evidence communications department Kaplan Dupont and which would indicate that itself and Kaplan intended communications between would be held confidence.” sum, Kaplan by

In was hired for a purpose DuPont business to collect this only, keeping finding, a debt. with there nothing clearly judge’s the trial decision that the erroneous attorney-client does not to the apply communications presented in this case. with facts judge dealt and counsel, admirably. arguments agree made did so We Judge with when he stated in his written decision that Loney DuPont n

“the communication between Kaplan is no more than a business used approach in an to collect a effort such, debt Forma-Pack. As the Court finds that the from communications DuPont between and Kaplan’s agents which refer to the attempts collecting made a debt owed Forma-Pack not protected discovery are from to pursuant attorney-client privilege.” (Emphasis add- ed). might entirely

We reach an different conclusion if DuPont had initially sent the debt collection matter to an attorney, utilizing non-lawyer services, rather than agency’s collection ifor DuPont had intended to litigate the matter itself. How- ever, it is clear from the record that DuPont no part wanted Indeed, any litigation effort. it was Kaplan’s within sole litigate discretion matter or not. If a private whether the. individual sent to a agency receivables collection such as Kaplan, relationship obviously would DuPont, apply. by using its legal department as a conduit communications, which to through route various should not be given greater privilege than a private client a similar Thus, situation. we conclude that a cannot corporation shield materials from discovery, and confer on them the cloak of confidentiality, simply by routing them through its coun- sel. To hold greatly otherwise would restrict the liberal rules, underpinning discovery of our they apply least as corporations, and would allow corporate protect entities to all virtually communications from Corporations disclosure. already have vast resources at their disposal with which to defend in litigation, themselves and we no see reason to provide impenetrable them with an shield that would afford greater them protection discovery than that of an indi- vidual client.

III. CONCLUSION stated, For the reasons we affirm judgment the of the trial court and hold that neither the work product doctrine nor the attorney-client privilege protects the communications between DuPont and Kaplan discovery by Kaplan Forma-Pack. in prepar- to aid by legal department not hired DuPont’s was Forma-Pack, hired as ing against nor was it DuPont’s lawsuit expert providing a or to assist the litigation agent Thus, materials were its with advice. the proper legal client of of or in rendition produced anticipation services, legal produced purely but were for the instead of purpose business debt collection. ANNE THE COURT FOR

JUDGMENT OF CIRCUIT PAID BE COUNTY AFFIRMED. COSTS TO ARUNDEL BY APPELLANT. RAKER, J., in which ELDRIDGE

Dissenting Opinion by WILNER, JJ., join. RAKER, Judge, dissenting. I

I reverse the of the circuit court because judgment would judge trial incorrect in deter- applied believe the the standard Dupont whether the documents transmitted between mining or attorney-client by were view, product my judge the work doctrine. In the trial per that a erroneously applied performed se rale function function, agent never and thus debt collection can protected by attorney-client privilege can never be work I product Accordingly, doctrine. would remand an in inspection matter to the circuit court to conduct camera the documents accordance with the made request to trial to Dupont judge, order determine whether privilege or work product protects doctrine the documents. outset, it is important scope my

At the note the factual, with the basic disagreement majority. Our dispute trial interpretation and surrounds remarks reason, judge. important For that it is out the Memo- set randum and Order the trial court. establishing

“The determinative of privi element the cloak lege presence is the of a confidential communication'ema Co., nating Levitsky George’s from the client.” v. Prince (1982). Md.App. A.2d the Court Levitsky, [439 600] 426 that “the Special Appeals expert may held mere fact the opinion

have communicated his of value to either the attor- ney privileged or client does not make it a communication.” (citing Id. at 494 A.2d State Comm. v. Highway 600] [439 ([S.D.] 1966)). Earl, S.D. 143 N.W.2d 88 In the [82 139] case, no present there was evidence of communication be- legal department Kaplan tween DuPont’s which would indicate that DuPont intended the communications between be held in Kaplan itself and would confidence. On the DuPont in an an contrary, Kaplan attempt hired collect outstanding debt owed Forma-Pack. agrees

This Court with Forma-Pack when it finds agent non-legal a collection is in nature and function of approach designed is no more than a business to collect outstanding Maryland directly debts. had no case law on agent’s which addresses whether a collection commu point attorney may pursuant nications with an be undiscoverable result, attorney-client privilege. to the As a Forma-Pack jurisdictions in support cites several cases from other of its argument. In Forma-Pack cites Henson v. particular, Laboratories, Inc., Wyeth privi which states that “for the lege apply, the confidential communication must be for primary soliciting rather than purpose legal, business (W.D.Va.1987) Henson, (citing advice.” 118 F.R.D. 584 Power, Membership North Carolina Elec. Corp. Carolina (M.D.N.C.1986)). addition, 110 F.R.D. 511 Forma-Pack is acting cites that “where as a business advisor agent, or collections ... the communication him between and his protected by privilege.” client are not In re (E.D.Wis. Jury, Witness the Grand F.Supp. before 1985) (N.D.Ill. In re at 22 (quoting Shapiro, F.Supp. 1974)).

This persuaded by arguments presented by Court Forma-Paak in cases because these the Court believes that the communication between DuPont and Kaplan is no more than approach a business used in an to collect a effort such, debt Forma-Pack. As the Court finds that the from communications DuPont and Kaplan Kaplan’s between a debt collecting made in attempts to the agents which refer discovery Forma-Pack are owed privilege. to the pursuant between the communications argues also [DuPont] work-product protected by are DuPont and doctrine....

[*] ^{[*] [*] [*]} by Kaplan and that the documents created argues DuPont the work- protected by Forma-Pack are by subpoenaed is ... delinquent once a account doctrine because product presumed it is legal department, to DuPont’s transferred this necessary. be The Court litigation may that finds collection, type the because debt argument unpersuasive in, and practice a business engaged was is Kaplan which legal practice. not a added).

(Emphasis after a full evidentia- judge, finds that the trial majority The finding that DuPont clearly not erroneous ry hearing, was any proof as to the existence failed to meet its burden “it is reasonable for majority concludes that The privilege. that when DuPont finding make the factual Judge Loney to to practice that was not authorized agency hired a collection to collect purpose was attorney, primary of an law instead 413, 718 Maj. at litigate op. the matter.” a debt and not to no basis for majority reasons that “there is A.2d at 1137. The findings Kaplan per- that was hired rejecting the factual function, function, a and that legal business form a DuPont and were not Kaplan between communications Maj. for trial.” op. or anticipation A.2d at judge that the trial conducted

I do not believe full factual find- judge nor did the make the evidentiary hearing, Rather, I majority. believe ings by as set out does not ruling was that debt collection basis for the court’s for an only possible support legal activity. constitute individualized consideration gave that the trial court argument trial court’s by DuPont to the claims of case, statement, there was no evidence present “[i]n legal department Kap- DuPont’s communication between communi- indicate that DuPont intended the lan which would would in confi- cations itself and be held between Nonetheless, circuit court to base its appeared dence.” attorney-client privi- that neither the premise decision on the docu- product nor the doctrine could ever shield lege work agent and a collection ments transmitted between an on behalf of a client. hired reading emphasized language

The fairest of both the as a whole leads to the conclusion opinion the memorandum that a function applied per performed that the court se rule function, never agent a debt collection can protected by attorney-client privilege thus can never be conclusion is product work doctrine. This reinforced judge that DuPont offered to allow the trial to conduct an fact documents, trial inspection disputed in camera but the rule, request.1 applying per this se judge declined Indeed, wrong legal appears trial court used the standard. it though majority applies per as the also a se standard that the recovery through agent, of a debt a collection even attempted agent attorney, if the is an is a business function not 417, Maj. function. at 718 A.2d at 1139.2 legal op. See privilege log Appendix. out in 1. The is set support argument always primarily of its that debt collection is function, activity, legal upon business rather than a Forma-Pack relies (N.D.Ill.1974). Shapiro, F.Supp. Specifically, 21 In re 381 Forma-Pack following passage: cites the attorney agent, acts as a business advisor or collection [W]here advice, gives or handles investment financial transactions for his client, the communications between him and his client are not protected by privilege. majority Shapiro pointing Id. at 22. The finds "illustrative in out that many courts have held that debt collection activities do not fall within 417, attorney-client privilege.” Maj. op. the ambit of the 718 A.2d at majority passage broadly. 1139. The Forma-Pack read this too Shapiro activity performed by agent does not state that a debt collection rather, activity; legal quoted passage merely be can never stands for proposition activity solely primarily the unremarkable motivated or by purpose, attorney a business rather than to assist the in rendition matters, court has the trial discovery mindful that I am showing only upon be disturbed which will broad discretion however, discretion, “not include does legal This of abuse. Supe Brown v. of law....” application of incorrect privilege 725, 327, 670 P.2d Court, 137 Ariz. Maricopa County, rior 2035, 135 81, 116 States, (1983); 518 U.S. S.Ct. Koon v. United (1996) abuses its district court (noting that a L.Ed.2d 392 law). when it makes an error discretion category at least one suggests in this case The record Specifically, be might privileged. documents which Peck, of DuPont to file Stanley on behalf attorney, retained an against of California court action the State pending Kaplan, DuPont Communications between Forma-Pack. the attor- protected by be subject, might well involving Wigmore, doctrine. See product or work ney-client privilege 1961) (“[T]he rev. (McNaughton § at 619 Evidence acting and is as subagent client’s attorney’s agent is also the omitted). client.”) (footnote such for the in this by the record suggested Although specifically be entitled to case, might of information categories other between a debt subject of communications protection as the or a client. For agent collection and either discussed, instance, agent a letter previously as attorney, if made antici to a response query direct work subject product be to the pation litigation, might of informa categories have identified other doctrine. Courts either the might tion which of in categories doctrine. These product or work involving: strength formation include communications claim, Systems see Int’l v. specific Spectrum weakness of a Bank, 809, 581 N.E.2d 78 N.Y.2d 575 N.Y.S.2d Chemical (1991); of a claim and the fees and the value defense, in its see Simon v. may be incurred expenses (8th Cir.1987) (Gibson, Co., 397, 406 Searle & 816 F.2d G.D. denied, 917, 268, J., 108 98 cert. 484 U.S. S.Ct. dissenting), services, protection. proposition is not entitled to Such attorney-client privilege. scope law with the of the common consistent 430 (1987); and, strategies for a client possible legal

L.Ed.2d 225 about adopt, prediction likely as well as a the outcome Adlman, litigation. See United States 134 F.3d 1195 Cir.1998). (2nd in con- It follows that the trial court erred cluding that no communication between DuPont and or attorney-client privilege could be either the prodüct work doctrine. view, facile checklist of my focusing “approved” on a attorney whom an communicate

occupations may safely with claim, accurately resolve DuPont’s will law,, Instead, proper under the relevant case the privilege. lawyer agent and an determining privilege focus between purpose is on the content and of those communications made during agency. the course of the matter, course, attorney-client privi-

Of as a threshold the only agency relationship to an if an exists lege applies agent client, attorney and the on behalf of the ór agent between the if the client and the agency relationship exists between Kuzman, Rosati v. agent attorney. which involves the 660 (R.I.1995); 503.1, supra, see § McLain, A.2d 482 (“ ‘A “representative lawyer” employed by n. 7 of the' is one lawyer lawyer professional the to assist the the rendition of services.’”) 502(a)(4)). Unif. R. Evid. Courts have (quoting relationship found an to exist “when three elements agency (1) coalesce: must manifest will principal agent (2) (3) him agent accept undertaking act for must parties agree principal must that the will be control of Rosati, 660 A.2d at 265. As to the undertaking.” case- specific determination whether extends to client, attorney agent communications between and the client, proper hired on behalf of the focus is not on the agency relationship mere existence of an or on whether com- United States v. See agent. munications to or from the passed (Under Seal), (4th Cir.1984), appeal F.2d after remand, (4th Cir.1985). proper 757 F.2d 600 focus is aid purpose whether communications was to providing legal representation to the client. See Berger, J. Weinstein & M. Federal Weinstein’s Evidence

431 ed.1998) (2nd that com- 503.12[4][a], (recognizing § at 503-25 agent agent and client between either munications purpose as the long so attorney may privileged, be attorney’s in the attorney is “to assist communication omitted). services”) (footnote rendition of attor- in which circumstances recognized Courts have .the communications between extends to ney-client privilege For on behalf of a client. agent and an hired attorney (2nd 918, Kovel, 922 296 F.2d instance, States v. United for the Second Cir.1961), Appeals of the United States Court concluded, an ac- communicated to information Circuit by a law countant, employed accountant had been when the scenario, would be complicated firm tax explain to was reason- if the information communicated privilege It was clear rendering representation. to ably proper related client. representing attorney advice aided the that such (4th Cir.1997), Allen, cert. 106 582 Similarly, In re F.3d - Bureau, Inc., nom., Better sub McGraw v. Gov’t denied (1998), -, 689, the court 139 L.Ed.2d 635 118 S.Ct. U.S. com extended to attorney-client privilege that the recognized agent and an retained attorney between an munications an initial factual rudimentary conducting task of perform the effectively could more so that investigation ” “ relevant.’ eye legally facts with an to the through the ‘sift[ ] States, 383, 449 v. United U.S. (quoting Upjohn Id. at 601 Co. (1981)). 390-91, 101 677, 683, 584 66 L.Ed.2d S.Ct. extends product whether the work doctrine determining the rele party’s agent, litigation prepared materials has asserting inquiry party

vant is whether purpose preparation for the primary demonstrated that the litigation. v. anticipation was the materials Cranford 791, 221, 759, 237 Md. 481 A.2d County, 300 Montgomery (4th Bornstein, 112, (1984); 977 F.2d see States v. United Bedell, Cir.1992); 199 W.Va. Hosp. ex rel. United State (1997). this gravamen inquiry The 484 S.E.2d anticipated between the relationship the “causal upon focuses document, rather than a creation of the and the already have litigation-causing events requirement United, Adlman, (2d States v. occurred.” 68 F.3d Cir.1995). Supreme persuasively Court Iowa has observed: parties litigation, begin

“Prudent anticipate preparation to the time suit is prior formally commenced. Thus the test whether, should in the of the docu- light the nature case, in particular ment and the factual situation the the fairly prepared document can be said to have been prospect litigation . . . . ” obtained because of the of [8 C. Wright Miller, A. & Federal Practice and Procedure (1970).] § It 198-99 does matter the investigation investigation may is routine. Even a routine in anticipation litigation. be made of Thus a document in prepared regular the course of business bemay prepared in of when anticipation litigation party’s the business is to for prepare litigation. Harris, (Iowa 1983) (internal

Ashmead v. N.W.2d omitted). partially citations

Other courts have identified instances when a function client, performed by agent, an on behalf of a in resulted the in anticipation creation of materials of For litigation. exam- ple, physician’s protected letter was held to be work product when the letter was in response to a direct an request attorney as to the of physical cause the client’s ailment. (1st Sprague Comp., Workers’ 688 F.2d 868-70 Office of Adlman, Cir.1982). (2nd In United States v. 134 F.3d 1194 Cir.1998), the United States Court of Appeals for the Second protection Circuit addressed the of a discovery study, for prepared attorney, an assessing likely results of a which, occurred, transaction if business it was expected to litigation. result in study court held that the was protect- discovery ed from if in prepared anticipation of expected Id. at 1195. The Second Circuit reasoned that the litigation. study contained impressions the mental agent who for prepared study attorney: study] proposed possible legal [The strategies theories or in adopt response, [the client] recommended pre- transaction, and made structuring methods ferred litigation. likely outcome about predictions the nexus upon court focused The Adlman Id. at 1195. of the and the creation litigation anticipated between of the materials; protection upon court also focused anticipation generated of an impressions agent mental a client. on behalf of for an principles these apply trial court I would have the DuPont communications between determining whether in fact either the protected are I believe that this is or work doctrine. product instance. trial court to make the first inquiry for the I the observation Court regard, agree this with York that: of New Appeals

[Wjhether is or is not document particular determination, requir- most often fact-specific necessarily ing camera review. Int’l, 809, 581 N.E.2d at 1060 575 N.Y.S.2d

Spectrum, Systems State, 125, (internal omitted); v. 282 Md. citation see Couser (1978) 389, work 136, (noting that whether the 383 A.2d 395 prosecutor’s data included within protects doctrine product and upon nature jury depend dossier would seem denied, 852, information), 439 99 cert. U.S. substance of the (1978). 158, v. Upjohn 156 Co. United 58 L.Ed.2d S.Ct. 677, 686, States, 383, 397-98, 66 L.Ed.2d 449 101 S.Ct. U.S. (1981), emphasized the Supreme United States Court 584 evidentiary “case-by-case” of a determination importance impor similarly recognized courts have Other privilege. of the contents of a of an individualized assessment tance claim of privi to a colorable response relevant document (4th Allen, 582, Cir.1997), 608 cert. In re 106 F.3d lege. — Bureau, Inc.; nom. McGraw v. Better Gov’t denied sub (1998); U.S. -, 689, 635 In re Sealed S.Ct. 139 L.Ed.2d 118 White, (D.C.Cir.1994); Case, 715, States v. 29 F.3d 718 United (7th Cir.1992); 328, Jersey v. New Payton 334-35 970 F.2d 321, (1997); Auth., 524, A.2d 335-36 148 N.J. 691 Turnpike Bedell, 316, 199 484 S.E.2d rel. W.Va. Hosp. ex United State 434 Co., Bartlett v. John Hancock Mut.

199, (1997); Ins. Life accord J. (R.I.1988); Lynch, Bourne, 538 A.2d Jr. &R. Maryland 7.3(b), (1993); § at 507 Modern Procedure Civil § Wright, C. at 484- Federal Practice and Procedure (2nd ed.1994). an in camera review of the performed Had the trial court DuPont, documents as court requested by may well have found that some or all of the documents were privileged. The majority states that “it is clear from Ms. Herr’s deposition legal department that DuPont’s own viewed the Forma-Pack approach, collection matter as a business rather than a legal in anticipation taken approach litigation,” concludes “any generated that documents between and DuPont Kaplan ordinary would be materials created course of business not in anticipation litigation.” Maj. op. 718 A.2d majority at 1137. The views Ms. Herr’s deposition isolation Herr, ignores her affidavit. The affidavit of Ms. along Wiltsee, legal with that of DuPont assistant Glenn established Kaplan the communications with & were made expectation confidentiality with the and in anticipation of alia, inter averred, (cid:127)litigation. Ms. Herr in her affidavit: legal department Once account is sent to the collection, it presumed litigation may necessary collect the debt.

8. At all times in with dealing agencies collection such as & I all Kaplan Kaplan, expect that communications between myself anyone at Dupont’s legal department else and the collection are confidential agency agency since the collection assists the in the department collection the account and, if necessary, facilitates the institution of a lawsuit. I believed that all which I communications had with Kaplan Kaplan concerning & the Forma-Pack account were confidential.

The affidavit of Glenn Wiltsee was essentially the same as the addition, In affidavit of Susan Herr. privilege log reveals communications to facilitate were made either that numerous made in or were after filing litigation California of the had begun. sum, concluding in hold the trial court erred I would that agent a debt collection and that materials transmitted between attorney- can be or a client never an I I product emphasize client and work doctrine. privilege of in any the documents are holding do advocate I would the matter Circuit protected. fact remand conducting for the of County purpose for Anne Arundel Court an in camera that DuPont claims inspection of the documents Co., Constr. See United Coal Cos. v. Powell protected.3 are (3rd Cir.1988) camera F.2d for an (remanding after court inspection disputed applied of documents trial wrong legal privilege). standard claims may Finally, I would note that individual document subject matter. privileged non-privileged contain both and circumstances, trial court should order redac- Under those information, discovery permit tion of the privileged the document. United remaining contents non-privileged (Under Seal), States at 878. 748 F.2d I dissent. Accordingly, respectfully Judge ELDRIDGE they me to state that Judge WILNER have authorized join in the expressed views herein.

APPENDIX In support attorney-client privilege of its claims of and work doctrine, following introduced product privilege DuPont log: inspection required every every

3. An in camera is not document privilege case in which a colorable claim of has been raised. Ordinari- ly, such decisions are within the sound discretion of trial court. however, here, party prima Whereas has established a when facie privilege, part sufficiently privilege log, claim based on detailed privilege are materials for which the claims made are number, relatively inspection by camera few in an in trial court unduly log privilege would not As reflected in the burdensome. reproduced Appendix, only in the DuPont’s claims of extended documents, generally length. or two to sixteen one pages Document from Letter Bonds to Description S. Charles Rodney Hirseh dated 29,May Manager, and Position of Author Identity S. Rodney Bonds, & Kaplan Manager Legal Inc., Kaplan, DuPont Dept. and Position Identity Mr. Charles Recipients attorney Hirseh, Ingersoll Ballard, Andrews & Spahr, Privilege PrivilegeWork Claimed Client Attorney Product Exhibit A-l Document record Description Computer and Position of Author Identity & Kaplan Internal Internal Kaplan and Position of Identity Recipients Privilege PrivilegeWork Claimed Client Product Attorney Exhibit A-2 Document Facsimile from Bonds to Hirseh Description dated 5/8/97 Manager, and Position of Author Identity S. Manager Legal Rodney Bonds, & Kaplan Kaplan, Department and Position of Identity DuPont Mr. Recipients Charles attorney Hirseh, Ingersoll Ballard, Andrews Spahr, & Privilege PrivilegeWork Claimed Client Attorney Product Exhibit A-3 Document Description Letter Edward J. Friedman to Mr. Bonds dated Rodney 22,1997 April and Position of Author Identity & Edward J. Kaplan Kaplan attorney Friedman, Weinstoek, Stevan, Harris & P.A. Friedman, and Position of Mr. Identity Recipients & Rodney Bonds, Kaplan Kaplan, Manager Legal Dept. Privilege PrivilegeWork Claimed Client Attorney Product Exhibit A-4 Document Letter from Description Edward J. Friedman to Mr. Bonds dated Rodney 16,1997 April and Position of Author Identity & Edward J. Kaplan Kaplan attorney Friedman, Weinstoek, Harris & Stevan, P.A. Friedman, and Position of Identity Mr. Recipients Bonds, & Rodney Kaplan Kaplan, Manager Legal Dept. Privilege PrivilegeWork Claimed Client Attorney Product Exhibit A-5 Document Letter from Description Brian L. Celia to & Kaplan dated March Kaplan 21,1997 and Position of Author Identity DuPont Brian L. attorney, Celia, Glynn, Lange Celia & Position Identity & Recipients Kaplan Kaplan Privilege PrivilegeWork Claimed Client Attorney Product Exhibit A-6 Document Lange Description Facsimile from Bonds to Bob Rodney dated February 14,1997 Manager Position of Author Identity Rodney Bonds, & Kaplan Kaplan, Legal Dept. Lange, and Position of Identity DuPont Recipients Robert J. Esq., Lange Celia & Glynn, Privilege PrivilegeWork Claimed Client Attorney Product A-7 Exhibit Lange to Mr. Rodney Letter from Robert J. Document Description 4,1997 Bonds dated February Lange, Robert J. Glynn, of Author DuPont attorney Position Identity Lange &Celia Manager & Bonds, Kaplan, and Position of Recipients Rodney Identity Legal Dept. Privilege/Work Privilege Product Client Attorney Claimed A-8 Exhibit from Mullins to DuPont Facsimile Legal Jim Document Description 19,1996 dated June Legal Mullins, Author Jim & Kaplan, and Position of Kaplan Identity Representative Vaughn, Legal DuPont and Position of Recipients Faye Identity Privilege/Work Privilege Product Attorney-Client Claimed A-9 Exhibit from Peck addressed to Jim Letter Stanley Document Description 19,1996 Mullins dated June Peck of Author DuPont Stanley and Position Identity attorney Legal Mullins, & Kaplan, and Position of Jim Recipients Kaplan Identity Representative Privilege/Work Privilege Product Attorney-Client Claimed Exhibit A-10 to Susan from Jim Mullins Hen- Document Letter Description forwarding March DuPont dated 23,1996 Progress Peek Stanley Report Counsel 3/15/96 Legal Mullins, of Author Jim & Kaplan, and Position Kaplan Identity Peck, DuPont Stanley Representative, counsel Legal DuPont Herr, and Position of Ms. Susan Recipients Identity Privilege/Work Privilege Product Claimed Attorney-Client Exhibit A-ll Stanley from Jim Peck Letter Mullins Description Document February 22,1996 dated Legal & Mullins, and Position of Author Jim Kaplan, Identity Kaplan Representative Peek and Position of DuPont attorney Stanley Identity Privilege Recipients Privilege/Work Product Claimed Client Attorney Exhibit A-12 Peck to Jim Mullins Letter Stanley Document Description 31,1996 dated May Author DuPont Peek Stanley and Position of attorney Identity Legal & Mullins, and Jim Kaplan, Position Identity Recipients Kaplan Representative Privilege/Work Privilege Client Product Claimed Attorney A-13 Exhibit from Jim Peck Stanley Letter Mullins Description Document 27,1995 dated September Legal Mullins, of Author Jim & Kaplan, Position Kaplan Identity Representative Peck DuPont attorney Stanley Position Identity Recipients Privilege/Work Privilege Client Product Attorney Claimed Exhibit A-14 Document Memo from Jim Description Mullins to Susan Herr dated attaching 23,1995 June 6/14/95,9/23/95 from DuPont correspondence Peck and collection' Stanley 8/29/94 letter to Forma-Pack Jim Legal and Position of Author Identity Mullins, & Kaplan Kaplan, DuPont Representative, attorney Stanley Peck Legal and Position of Identity Susan DuPont Recipients Herr, Privilege Privilege/Work Claimed Client Product Attorney Exhibit A-15 Document Internal Description & 8/94 for Kaplan “Request Legal Action Form” and Position of Author & Identity Identity Kaplan Kaplan Internal and Position of Recipients Privilege Privilege/Work Claimed Client Product Attorney

718 A.2d 1150 SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND Commissioner,

CORRECTIONAL SERVICES Division of Correction Vincent HENDERSON. 39, Sept. Term,

No. 1998. Appeals Maryland. Court of

Oct.

Case Details

Case Name: E.I. Du Pont De Nemours & Co. v. Forma-Pack, Inc.

Court Name: Court of Appeals of Maryland

Date Published: Oct 8, 1998

Citation: 718 A.2d 1129

Docket Number: 99, Sept. Term, 1997

Court Abbreviation: Md.